Defendants ArtistShare, Inc. and Fan Funded, LLC (“ArtistShare”) move to dismissPlaintiff Kickstarter, Inc.‟s (“Kickstarter”) Complaint under Rule 12(b)(1) of the Federal Rules
of Civil Procedure for lack of subject matter jurisdiction.
Kickstarter‟s complaint for declaratory relief
should be dismissed because there is nocase of actual controversy. Kickstarter filed its complaint during business negotiations withArtistShare in which the parties had exchanged proposals for either licensing or purchasing the
ArtistShare patent. When Kickstarter‟s offer to purchase the patent was not accepted,
Kickstarter decided to take a different approach
Kickstarter filed suit rather than provide acounter-proposal. The Declaratory Judgment Act was not intended to be used as a tool to forcemore favorable settlement terms.
EMC Corp. v. Norand Corp.
, 89 F.3d 807, 815 (Fed. Cir.1996) (dismissing declaratory judgment complaint that was filed as a tactical measure to improvethe litigant
s posture in ongoing
ArtistShare‟s communications with Kickstarter, taken individually and in totality,
do notshow a substantial controversy, between parties having adverse legal interests, of sufficientimmediacy and reality to warrant the issuance of a declaratory judgment. ArtistShare neveralleged that Kickstarter infringed the ArtistShare patent during their negotiations; nor didArtistShare threaten litigation.
amicable business negotiations with Kickstarterevince a good faith attempt to enter into a cooperative relationship. The parties should have anopportunity to continue their discussions without the expense and adversity inherent in litigation.
Case 1:11-cv-06909-PAC Document 21 Filed 02/03/12 Page 3 of 15